Page 5011 - Week 16 - Tuesday, 26 November 1991
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I refer to the leading ADJR cases, and those first cases in the early days of ADJR, as I will refer to it. In Hamblin v. Duffy (1981) 34 ALR 333, Mr Justice Lockhart acknowledged that it was not appropriate for him to seek to expound definitively the meaning and ambit of the expression "decision of an administrative character"; and that this definition should be determined progressively in each case as particular questions arose.
Further, Mr Justice Ellicott, as he then was, in Tooheys Ltd v. Minister for Business and Consumer Affairs (1981) 36 ALR 64 at page 73, referred to the fact that legislation was intended to confer on citizens - and I stress this - important procedural rights against excessive action, and that it was undesirable to attempt to define in advance the full scope and operation of the phrase in issue in that case. It is also acknowledged in the text - and in all of my comments I read from texts - that all statutory powers must be exercised reasonably and that, inasmuch as powers are conferred subject to an implied requirement that they must be exercised reasonably, there is scope within this modern administrative legal provision for the courts to review that conduct.
Some of the principles to review unreasonableness are, for example, the principle of proportionality; that is, in this particular case, how it relates to other decisions. There is also the principle of legal certainty, and the principle of consistency. We have spoken about consistency in relation to prior practice. And there is also a recognition of fundamental human rights. Of course, we all know about the fundamental human rights that apply in respect of education. I will not delay the house, other than to stress that in Budget Paper No. 5 the Government clearly indicates that the program that we are speaking of:
... provides funding assistance by way of Territorial grants to non-government schools and agencies and onpasses grants on behalf of the Commonwealth Department of Employment, Education and Training. The program is also responsible for the registration of non-government schools.
I am quoting from page 227. The process of registering non-government schools, of course, takes place under an enactment, and that is, of course, the Education Act 1937, as amended, and other enactments. The Appropriation Bill itself, when passed, will be an enactment. I will wait to hear Mr Connolly on those preliminary issues and respond further. It may be argued, I believe, as I have experienced in a number of cases processed under the AD(JR) Act, that this is not a decision of an administrative character and not under an enactment; that it is merely government discretion, or ministerial discretion, and that it is beyond the reach of this Act. I simply disagree with that, and any such decision on that basis is a decision for the courts in the event that there is a challenge. It is not a decision for this legislature to take in looking at this provision.
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